국회의원의 정당기속과 자유위임

Abstract

The Constitution of Korea adopts the principle of popular sovereignty and representative democracy, and has applicable provisions of National Assembly members to represent the people and the principle of free mandate. As the Constitution aims for party-state system, it sets for provisions on party under which a National Assembly member obtains the status as a representative of the people as well as a representative or a member of the party. It has raised the issue of the dual status of a National Assembly member so that striking a balance between the principle of representative democracy and the principle of party-state in spite of the conflict and contradiction has been one of the most important constitutional topics in the Korea’s political situation. This paper will review the process of the principle of representative democracy and the principle of free mandate to be established in the western world and the significance of the principles in the modern constitutional law. It also reviews consitutional theories on the binding to a party of a National Assembly member as a result of a change in his/her status in today’s party-state democracy and analyzes the Constitutional Court cases, through which this paper seeks a way of the norm-harmonizing interpretation between the principle of representative democracy and the party-state democracy in the current Constitution of Korea. There are mainly three issues related to the conflict between free mandate and binding mandate of a National Assembly member to a political party under the current Constitution. The first issue relates to the loss of the status as National Assembly member when he/she leaves or switches over a party, which has also been under discussion in Germany. Korea widely recognizes that binding to a party of a National Assembly member as Article 192(4) of the Public Official Election Act sets forth that a proportional representative National Assembly member shall be relieved of his office when he leaves from his party or changes his party membership. The Constitutional Court concluded in the 92Hun-Ma153 case, prior to the adoption of the foresaid provision of the Public Official Election Act, that “a proportional representative National Assembly member shall not be relieved of his office when he leaves or changes his party membership except as otherwise provided in a separate provision.” However, the Korea’s academia is in conflict with two contradictory theories. Those who oppose the loss of the status put a focus on the representative role for the people and regard the status of a National Assembly member under the Constitution has nothing to do with the way of obtaining such status. The second issue asks that whether or not the decision of a party to get a National Assembly member resign from his/her Standing Committee and to transfer him to a different Standing Committee against his/her free will violates his/her activities as a representative with free mandate. In the 2002Hun-Ra1, the Constitutional Court ruled in the adjudication on jurisdiction disputes between National Assembly member and Speaker of the National Assembly that the decision of transferring (resignation･assignment) a National Assembly member who has a different perspective from the party platform from Health and Welfare Committee to another Standing Committee as the need of a bargaining body falls into the scope of “de facto coercion within a party” that may be accepted by the Constitution unless there is a reason. With the ruling, it acknowledges binding to a party by a member to a significant extent. The third issue in regard of binding to a party and free mandate is about disqualification of a political party member as a result of a ruling on unlawful political party dissolution. In the 2013Hun-Da1, Tongjin Party Dissolution case, the Constitutional Court recently made a decision that where an unlawful political party is dissolved in compliance with the ruling by the Constitutional Court, all National Assembly members of the party shall be disqualified and lost his/her membership, despite the fact that there is no written provision in the Constitution or in other laws as to the qualification of membership in such case. The Constitutional Court stated that maintaining membership of a National Assembly member of a dissolved party goes against the function of the unlawful political party dissolution measure to protect the Constitution and the philosophy of defensive democracy, and further it may affect the effect of the ruling of party dissolution. Given the rulings by the Constitutional Court through the three cases, the Court appears to put the value of party-state democracy over the traditional representative system. Its decision that transferring to another Standing Committee against one’s will does not violate the principle of free mandate allows the binding to a party to an excessive extent, which can be controversial. Moreover, the ruling to disqualify a membership as a result of party dissolution sacrifices representative role of a National Assembly member and free mandate in the exchange of the principle of party-state and the philosophy of defensive democracy. Although the Constitutional Court stated that the Constitution allows de facto coercion within a party against its member in the political party democracy, it fails to provide the scope and limit of the binding to a party accepted under the Constitution. The Constitutional Court needs to seek a harmonious way to resolve the conflict between the principle of representative system or free mandate and party-state democracy based on the unity of the Constitution. It is also needed to paying more attention to various discussions on the related issues in the academia. Finally, the principle of free mandate still has the regulatory power as the basic governing principle even in the modern party-state democracy. Alternating interpretation can be made, which sees that the free mandate principle can be in harmony with the party-state rather than in the ongoing conflict. The principle of free mandate means a protection for a National Assembly member against the pressure to cast a vote or express one’s intention against will or belief, and its role is to weaken the authority of a party to its member. The significance lies in the fact that the principle of free mandate is the precondition and a means of democracy within a party that allows free and vigorous internal discussion.